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United States v. Bell

United States Court of Appeals, Eighth Circuit

February 12, 2019

United States of America Plaintiff - Appellee
v.
David Allen (Allan) Bell, also known as David Allen Bell, also known as Donte Borae Defendant-Appellant

          Submitted: November 15, 2018

          Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before GRUENDER, KELLY, and GRASZ, Circuit Judges.

          GRUENDER, CIRCUIT JUDGE.

         David Bell appeals the district court's imposition of special conditions of supervised release prohibiting the consumption of alcohol and setting a curfew. We reverse and vacate those conditions.

         Under a binding plea agreement, Bell pleaded guilty to conspiracy to distribute marijuana and conspiracy to commit money laundering. The plea agreement included a waiver of appellate and post-conviction rights. As relevant here, Bell "expressly waive[d] the right to appeal any sentence, directly or collaterally, on any ground except . . . (1) ineffective assistance of counsel; (2) prosecutorial misconduct; (3) an illegal sentence, or; (4) that the Court imposed a sentence other than the one set out in this binding plea agreement." The plea agreement defined an illegal sentence as "a sentence imposed in excess of the statutory maximum or different from that set out in this binding plea agreement" but "not a misapplication of the Sentencing Guidelines or an abuse of discretion." The plea agreement provided for a sentence of 15 months' imprisonment and 3 years' supervised release.

         A presentence investigation report was also prepared. It stated that Bell "consumes alcohol occasionally, primarily on weekends." It also noted that Bell first used marijuana in high school and eventually began using it "regularly." Neither Bell nor the Government objected to the facts contained in the presentence investigation report.

         After the district court confirmed that the plea agreement and appellate waiver were knowing and voluntary, Bell was sentenced to 15 months' imprisonment and 3 years' supervised release. The district court also imposed special conditions of supervised release that were not described in the plea agreement. Special Condition No. 4 requires that Bell "not consume or possess alcoholic beverages or beer, including 3.2 percent beer, at any time, and [that he] shall not be present in any establishment where alcoholic beverages are the primary items for sale." Special Condition No. 5 requires Bell to be at his "place of residence between the hours of 10:00 p.m. and 6:00 a.m., 7 days per week," unless his work schedule requires otherwise.

         According to the court, the alcohol ban was necessary because "I've had too many defendants that go out and get to drinking, then they get intoxicated and then they go out and violate their supervised release." The court pointed to similar justifications in imposing the curfew:

And the same reason I put that curfew on there. . . . [T]hey violate their probation, they're out usually past midnight. They're out on the prowl, and they get into trouble. They get drinking, then they're out prowling the streets. Now, there's no indication you do that. But I'm going to leave it on there because I'm not even going to give you the chance to be tempted by it.

         Bell timely appealed the imposition of these conditions.

         We must first consider whether the appellate waiver prevents Bell from challenging the two special conditions of supervised release.[1] We review the validity of an appellate waiver de novo. United States v. Seizys, 864 F.3d 930, 931 (8th Cir. 2017). Ordinarily, plea agreements "will be strictly construed and any ambiguities in these agreements will be read against the Government and in favor of a defendant's appellate rights." United States v. Andis, 333 F.3d 886, 890 (8th Cir. 2003) (en banc). "[T]he burden of proof is on the Government to demonstrate that a plea agreement clearly and unambiguously waives a defendant's right to appeal." Id. But Bell's plea agreement proposed a different standard. It provided that "in interpreting this agreement, any drafting errors or ambiguities are not to be automatically construed against either party, whether or not that party was involved in drafting or modifying this agreement." We need not decide whether the parties can contract around our case law construing ambiguities against the Government. Giving the words their "normal and ordinary meanings," as the plea agreement itself demands, we conclude that the waiver does not prevent Bell from challenging the special conditions of supervised release.

         The plea agreement expressly stated that Bell may appeal a sentence "other than the one set out in this binding plea agreement." While the plea agreement provided for a sentence of 15 months' imprisonment and 3 years' supervised release, it did not describe any special conditions of supervised release. According to Andis, special conditions of supervised release are part of a sentence. 333 F.3d at 892 n.7; see also 18 U.S.C. § 3583(a) (stating that courts may include a term of supervised release "as a part of the sentence"). We therefore find that Bell is appealing a sentence other than the one provided for in the plea agreement. In response, the Government points to the additional language stating that Bell cannot appeal "a misapplication of the Sentencing Guidelines or an abuse of discretion." Because we ordinarily review a sentencing court's imposition of conditions of supervised release for an abuse of discretion, the Government contends that the waiver blocks Bell's appeal here. But this language defines an illegal sentence, the third category of exceptions to the appellate waiver. The definition does not purport to limit the fourth category: "that the Court imposed a sentence other than the one set out in this binding plea agreement." The special conditions are part of Bell's sentence but were not set out in the plea agreement. They therefore meet the "other than" exception and do not fall within the scope of the waiver.

         Because Bell objected at sentencing to Special Condition No. 4 imposing an alcohol ban, we review its imposition for abuse of discretion. See United States v. Forde, 664 F.3d 1219, 1222 (8th Cir. 2012). While the district court's discretion is broad, it is not absolute. Id. The conditions must 1) be "reasonably related to the sentencing factors set forth in 18 U.S.C. § 3553(a); 2) involve[] no greater deprivation of liberty than is reasonably necessary for the purposes set forth in § 3553(a); and 3) [be] consistent with any pertinent policy statements issued by the Sentencing Commission." United States v. Wiedower, 634 F.3d 490, 493 (8th Cir. 2011). Moreover, the sentencing court "must make an individualized inquiry into the facts and circumstances underlying a case and make sufficient findings on the record so as to ensure that the special condition satisfies the statutory requirements." Id. (internal quotation marks omitted). The court "may not impose a special condition on all those ...


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